Broken Trust Does Not Mean Discovery Sanctions

Parties end up in litigation often because trust has been broken. Distrust can make discovery in civil litigation even more of a legal brawl than anyone enjoys.

In Malone v. Kantner Ingredients, the Plaintiffs seriously did not trust the Defendants’ discovery productions.

The Plaintiffs alleged the Defendants failed to produce emails and transaction invoices located on a specific server. The Defendants were ordered to search the specific computer servers to determine if the imaging performed at the beginning of the case was complete. Malone v. Kantner Ingredients, 2015 U.S. Dist. LEXIS 41951, at *2-3 (D. Neb. Mar. 31, 2015).

The Defendants imaged the subject server and provided the full mirror image to the Plaintiffs. The Plaintiffs conducted their own analysis of the server compared to the prior production. The Plaintiff then brought a motion to show cause that alleged the Defendants’ council and paralegal failed to comply with the Court’s order. Furthermore, the Plaintiffs alleged the Defendants “destroyed or tampered with evidence, and provided untruthful information to the court regarding the existence of discovery requested by the plaintiffs.” The Plaintiff sought to recover the costs incurred by their own computer forensic expert in analyzing the supplemental server production. Malone, at *4.

The Court rejected the Plaintiffs’ arguments. The Court explained that the original order required “the defendants to determine if the server imaging performed by the defendants at the outset of the case was a full and complete imaging: It did not require the defendants to repeat their ESI review and production if the 2012 initial data imaging appeared to be full and complete.” Malone, at *5-6, emphasis added. The Court actually stated the Plaintiffs’ arguments “misconstrue[d] the intended meaning” of the original Court Order. Malone, at *6.

The Court explained that the Defendants actually exceeded the original Court Order by producing the imaged server to the Plaintiff. Malone, at *6, fn 4. Moreover, the server production contained all the emails, invoices, and associated metadata that the Defendants should have produced. Malone, at *6. Furthermore, the Plaintiffs’ use of their own expert was reasonable to “bring some closure to the ongoing ESI discovery battle.” Malone, at *6.

Magistrate Judge Cheryl Zwart also highlighted a maxim of discovery: the standard for productions is reasonableness, not perfection. Malone, at *7-9.

The fact mistakes were made in a production did not justify imposing sanctions; especially considering the fact the Plaintiffs had full access to the imaged server. Malone, at *8. The Court held that the Defendants’ attorney and paralegal did not “provide misleading or untruthful information to the court.” Furthermore, there was no evidence that the “Defendants, their counsel, or their counsel’s paralegal destroyed, hid, or purposefully (or even recklessly) failed to produce responsive ESI.” Malone, at *9. As such, the Court held that requiring the Plaintiffs to pay their own expert’s fees was a “reasonable method for sharing the cost of ESI discovery” in the dispute. Malone, at *8-9.

Judge Zwart did have some prolific words after the revelation that the parties did not discuss the collection or production of ESI at the beginning of the case: “Had those discussions occurred, the court believes all parties’ discovery costs would have been minimized.” Malone, at *6-7.

Bow Tie Thoughts

A little planning goes a long way. Parties should discuss the scope of discovery at a Rule 26(f) conference. Sources of electronically stored information, possible relevant data, and collection methodologies are important topics that can dramatically reduce discovery disputes.

Magistrate Judge Cheryl Zwart is now a judge to watch on eDiscovery cases. Judge Zwart did a masterfully job with the opinion in analyzing the facts of the case and law. Moreover, there is a nice footnote on the use of predictive coding being an accurate and more efficient method for document review, referencing both Nicholas Barry, Man Versus Machine Review: The Showdown Between Hordes of Discovery Lawyers and A Computer-Utilizing Predictive-Coding Technology, 15 Vand. J. Ent. & Tech. L. 343 (2013) and Maura R. Grossman & Gordon V. Cormack, Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review, 17 Rich. J.L. & Tech. 11, P 5 (2011).

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.